Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF022381, John I. Kelly, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Jose Alberto Villasenor (defendant) appeals as error the trial court’s decision to allow the prosecution to impeach him with an earlier misdemeanor conviction. We will affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of September 13, 2007, Riverside County Sheriff’s Deputy Pendleton was patrolling an area near Bundy Canyon when he noticed a black Mustang without a rear license plate and license plate lights that were not working. The deputy initiated a traffic stop by turning on the overhead lights of his black-and-white patrol vehicle. When he walked up to the driver’s side of the Mustang, the deputy saw that the vehicle was being driven by defendant and that there was a woman, later identified as defendant’s girlfriend, in the passenger’s seat. When the deputy asked to see the registration and defendant’s driver license, defendant pointed a semiautomatic pistol at the deputy’s head and pulled the trigger. The gun made a clicking noise, but did not fire. When the gun failed to fire, defendant looked at it and shook it. Defendant appeared to be confused as to why the weapon did not work. After defendant tried to shoot him, the deputy drew his service weapon and began to back toward his patrol vehicle while firing at defendant. As the deputy was firing, defendant’s vehicle drove off. The deputy gave chase for about a mile, until defendant’s vehicle crashed into a fence. When the deputy reached the vehicle, the doors were open and the occupants were running away.
Defendant and his girlfriend were later arrested in a shed on a property off Bundy Canyon Road. A.22-caliber semiautomatic handgun and two live rounds of ammunition were found in the shed. A live bullet for a.22-caliber handgun was also found in the front seat of the Mustang.
An information filed April 9, 2008, charged defendant with attempted premeditated murder of a peace officer and alleged that he personally used a firearm in the commission of the crime. (Pen. Code, §§ 664, subd. (e), 187, subd. (a), 12022.53, subd. (b), 12022.5, subd. (a), (count 1)); possession of a controlled substance, cocaine (Health & Saf., Code § 11350, subd. (a), (count 2)); and being under the influence of a controlled substance while in personal possession of a loaded firearm. (Health & Saf., Code § 11550, subd. (e), (count 3).)
Defendant pleaded not guilty to all charges and the matter proceeded to jury trial. The owner of the property where defendant was apprehended and various deputies involved in the arrest and questioning of defendant and his girlfriend testified to the facts as stated above. Defendant’s girlfriend testified that she never saw defendant with a gun or heard him fire one. However, the prosecution impeached her with an audiotape and transcript of her interview with police about 10 hours after the incident. In the interview, defendant’s girlfriend said that she saw defendant point a gun at the deputy and heard defendant shoot the gun.
Firearm experts for the prosecution and defense both testified that the gun had a tendency to misfire or jam and would not fire unless the person handling it knew how to clear it. Defendant’s expert testified that if a person attempted to clear the jam, the round of ammunition would eject and, if the person was sitting in an automobile, would possibly end up somewhere in the automobile.
Just before defendant took the stand in his own defense, in an Evidence Code section 402 hearing, the prosecutor requested permission to use his 2005 misdemeanor conviction for inflicting corporal injury upon a spouse (Pen. Code § 273.5, subd. (a)), to impeach him. Defense counsel objected: “I’m meaning to refer to the Evidence Code, but I thought that you could ask somebody regarding felony conviction, but you would have to show the surrounding conduct in a misdemeanor case. I could be mistaken, but I would object on those grounds. In addition to that, that it would be prejudicial and, I believe, that the danger of unfair prejudice would outweigh any benefit that the trier of fact would hear regarding that issue.” The trial court ruled that the conviction could be admitted: “It’s my understanding that a violation of the alleged charge... [affects]... the credibility, believability of a witness who has a prior conviction of... corporal punishment.... Therefore, I am going to... allow a brief reference by the People of that conviction, for that limited purpose.”
When defendant testified, he admitted that he had pointed the gun at the deputy, but said he knew it did not work and only intended to scare him. During cross examination, after establishing that defendant considered himself “a decent person, ” the prosecutor asked: “Were you a decent person in June of 2005, when you were convicted of corporal injury on your spouse?” Defendant responded that he had been drunk that day, and that he did not have a gun and had not pulled one on his spouse. At no other time did the prosecutor ask about or refer to defendant’s prior conviction.
Count 2 was dismissed on motion of the prosecutor. The jury convicted defendant of counts 1 and 3. Defendant was sentenced to 25 years to life in prison: 15 years to life for the attempted murder, plus 10 years for the use of a firearm.
DISCUSSION
Defendant argues that the trial court erred by allowing him to be impeached with evidence of his prior conviction, and that the error was prejudicial. The People reply that there was no error and that, even if there was, it did not prejudice defendant.
Evidence Code Section 352 Standard of Review
“When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609; see also People v. Kipp (2001) 26 Cal.4th 1100, 1121.) “‘[P]rejudicial’ is not synonymous with ‘damaging, ’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp, at p. 1121.) “On appeal, the ruling is reviewed for abuse of discretion. [Citation.]” (People v. Cudjo, at p. 609.)
Admission of Evidence of Past Criminal Conduct
“‘Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness... is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.’” (People v. Smith (2007) 40 Cal.4th 483, 512.) Crimes involving moral turpitude suggest a “readiness to do evil” and may indicate a “willingness to lie.” (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401-1402;see also People v. Wheeler (1992) 4 Cal.4th 284, 295-296, superseded by statute as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460).) Corporal injury upon a spouse is a crime of moral turpitude. (People v. Rodriguez, at p. 1401-1402.)
After hearing argument from both parties, the trial court allowed a brief reference to defendant’s prior criminal conduct. In cross examination, the prosecutor used the trial court’s permission sparingly, consuming little time. Moreover, he did not simply refer to the fact that there was a prior conviction; he elicited potentially mitigating information regarding defendant’s version of the circumstances under which the earlier crime had taken place. Defendant was thus able to explain that he was drunk at the time and that he had not used a gun. The fact that, in the past, he had inflicted corporal injury upon his spouse may have been damaging, but there was no evidence that the information evoked an emotional bias against him so as to prejudice the outcome of the trial.
Harmless Error
Assuming—only for the sake of argument—that the trial court should have excluded the evidence, any error in its admission was harmless. “The controlling consideration... is whether the error has resulted in a ‘miscarriage of justice.’” (People v. Watson (1956) 46 Cal.2d 818, 835-836.) A miscarriage of justice occurs only when it appears that the defendant would have obtained a more favorable result absent the error. (Id. at p. 836.)
In this case, the evidence of defendant’s guilt was so overwhelming that there is virtually no chance that the jury would have reached a different verdict had it not known about his prior conviction for spousal abuse. Though he claimed that he only intended to “scare” the deputy and had not pulled the trigger, defendant testified that he was under the influence of multiple substances and admitted that he had pointed his gun at the deputy. He also testified that he had a “DUI” conviction in the past. Deputy Pendleton testified that defendant had pointed the gun at him and had pulled the trigger, and that he heard the gun click. Defendant’s own firearms expert explained that, while the gun could not be fired unless its jam was cleared, if it was cleared the bullet would likely have dropped somewhere in the vehicle—where a round was found. In addition, although at trial she denied seeing defendant with a gun or hearing the gun fire, defendant’s girlfriend had told police that she had heard him fire the gun.
In sum, there was no error in the trial court’s decision to allow the prosecutor to impeach defendant with evidence of his prior conviction and the circumstances surrounding it. Nor was there any miscarriage of justice as a result of the admission.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.